(152 N.E.) leading to Gooseberry Neck; then southwest- [tion to the selectmen to resurvey and reloerly in the westerly line of said public way to cate the public way, and notices of the intenits intersection with the line of high-water tion of the selectmen to lay out a way had mark on said west beach, so called; thence been left at the places of abode of owners northerly in line of high-water mark on said of land affected and a public notice had been west beach to the place of beginning, together with the right, in common with others, to use given of a meeting to be held on December 7, said beach for bathing, boating, driving, fish- 1912, at which meeting it was adjudged that ing and walking." common convenience and necessity required the layout of a road as it was later constructed and now exists. This road and the location of other objects and lines material to this case are shown on the accompanying plan. The land which the petitioner now seeks to have registered is a much larger tract than that literally described in the deed. This additional land ** ** * "has become attached to the original tract by The respondents Wood, Mahoney and Tucker contend that they are the owners of Gooseberry Neck and the bar, under a deed to them dated June 20, 1923. They also contend that by virtue of a deed in November, 1924, from Wordell, one of the petitioner's grantors, they own an interest in the fee and soil of West Shore road, opposite the petitioner's land and running south to the bar, and in land between the road, the bar, the sea, and the petitioner's land. It was agreed that the petitioner's grantors owned the fee of the soil of West Shore road when the deed to her was given. There was no evidence of any change of title of grantors, except that Lanie J. Cornell succeeded to the title of John H. Cornell, deceased, by virtue of a provision in his will, and that Wordell made the conveyance before mentioned. The petitioner's grantors made no argument and filed no brief in this case. The land east of and opposite the locus lying between the road and sea on the east and extending both further north and south was acquired by the town of Westport in 1916 for a town landing. The town did not contest the petitioner's claim. At the date of the petitioner's deed no road east of her land had been constructed, but at a meeting of the town of Westport in March, 1912, the layout by its selectmen of a public way, the westerly line of which is indicated on the plan by the words "Street Line Claimed by Respondents," was accepted. Because of some error, and for other reasons which did not appear, this layout proved to be unsatisfactory and the road was not constructed. A new layout by the selectmen was made in the latter part of 1912 and accepted by the town in March, 1913. Before the date of the deed to the petitioner, there had been a peti The judge of the land court found that, when the petitioner's grantors gave her the deed, all parties thereto intended to convey to the present west line of the West Shore road, called by them in the deed "the public way." Certain buildings on the petitioner's land and on the line of this road as shown on a plan were erected between the years 1913 The respondents have waived and 1919. their contention that the petitioner's easterly boundary was the line of the way in the earlier layout. The judge of the land court took a view of the premises in company with. counsel. The judge ruled that: "The petitioner's boundary on the west is limited to high-water line and that she has no title to the foreshore between high and low water as claimed, but that she has as appurtenant to her land such rights over the foreshore as were granted in her said deed, which are not inconsistent with the public rights under the colonial ordinance, to be exercised in common with all others entitled thereto." And he also found and ruled that the petitioner's easterly boundary is the west line of the West Shore road as shown on the plan. As to the division of the new land formed by accretion, the judge found that so far as the petitioner was concerned it arose from natural causes, and ruled that the lines of ownership of this land are to be determined as in the ordinary case of a division of flats. The judge also found that the petitioner's grantors conveyed a piece of land bounded on the north by the line shown on the plan and accurately described in the deed; on the west by the west line of the public way as laid out by the selectmen of Westport on December 7, 1912, and later accepted by the town; and on the west by high-water line. He further ruled: "That high-water line and the point of intersection of high-water line and the west line of West Shore road are monuments in the petitioner's deed and moved westward and southward as accretion took place so long as such intersection could be maintained." He found that the layout of that road ran to the bar, that this terminus, as fixed by the evidence, was 317.15 feet south of the northeast corner of the locus as shown on the plan, and that this point "is the utmost extent of petitioner's street line because the point of contact aforesaid cannot be maintained beyond this station. Highwater line is now further south, as shown on the filed plan, but there is no public way for it to intersect." time it was executed." Bessey v. Ollman, supra; Haskell v. Friend, 196 Mass. 198, 81 N. E. 962. Accretions to land bounding on a river or the sea belong to the owners of the adjoining land. Deerfield v. Arms, 17 Pick. 41, 28 Am. Dec. 276. "When the line between water and land bordering thereon The boundary lines over the land acquired is changed by the gradual deposit of alluvial by accretion were found to be: "On the north side the line shall continue west in the same direction as her 80-foot deed line to high-water mark." This was the line claimed by the petitioner and the judge found that by adopting it no harm would result to owners west of the locus who had received only constructive notice of the proceedings. The west line is to be the line of high water as it may exist from time to time. In fixing the south line the judge found that the shore of Horseneck Beach does not form a cove, and that in the division of the foreshore of this beach the lines of division should run normal to the average coast line, and determined that the southerly line of the petitioner's land runs in a southwesterly direction from the station at the south end of the town way, as previously determined, to high-water line, making an interior angle of 112 degrees 52 minutes with the west line of the town way at its south end. The judge divided the shore line of Horseneck Beach into three parts; the easterly, including the locus, formed an arc of a circle with a radius of about 2 miles. Radial lines drawn from any point along this part of the shore will all meet as a common point in the center of that circle; drawing a radial line from the "bar" as used and determined on the town plan of layout to the center of the circle will make an interior angle of 112 degrees 52 minutes herein before mentioned. A decree was ordered for the petitioner in accordance with the decision and plan; and appeals were taken by the respondents and also by the petitioner. The petitioner contends that her southerly line should be continued beyond the point marked "Bar" on the plan to the point where the westerly line of West Shore road continued would meet high-water mark. The respondents contend that the southerly point of the petitioner's land is limited to the place where the westerly line of West Shore road and high-water line met at the time of the conveyance to her in 1912. [1-4] "An appeal from the land court brings before this court only questions of law apparent upon the record. Findings of fact cannot be revised." The petitioner has the burden of proving the title to be registered. Bessey v. Ollman, 242 Mass. 89, 91, 136 N. E. 176, 177. "Every deed is to be construed so as to give effect to the intent of the parties as manifested by the words used, interpreted in the light of the material circumstances soil upon the margin of the water, the owner of the land ordinarily becomes entitled to the new land thus formed." Tiffany on Real Property, vol. 2, p. 2093. The judge did not find in terms or indicate on the plan the place where West Shore road and high-water line met in 1912. We are not in this case bound to determine whether the layout of the way to the bar was legal in whole or in part. It is to be assumed that a municipality has not authority to lay out a way beyond high-water line. Marblehead v. County Commissioners, 5 Gray, 451, 452; N. Ward Co. v. Street Commissioners, 217 Mass. 381, 384, 104 N. E. 965. [5, 6] The question is whether the parties had in mind, in bounding on the westerly line of the public way, the way as it was laid out by the selectmen. The judge has found that the parties intended to bound the land on this way, which was later accepted and constructed. It is well established, in the case of accretions to land along the seashore, that "the line of ownership follows the changing water line." East Boston Co. v. Commonwealth, 203 Mass. 68, 75, 89 N. E. 236, 238 (17 Ann. Cas. 146). This rule seems to be based upon presumed intention. The parties bounded their lot on the east by the line of the public way to its intersection with the line of high-water mark on west beach. This being so, there is no legal objection to the monument made by this intersection moving as accretions take place (just as the rest of the high-water front line moves), and the judge was right in ruling as he did on this point. He also correctly ruled that this movement could not go further south than the southerly limit of the street as laid out because there could be no intersection of the street line and high-water mark below that point. [7, 8] The remaining question is whether the direction of the petitioner's line from the southerly end of the street as laid out was correctly determined. The principle governing the division of flats among adjoining owners of upland is applicable to the division of alluvium accretions. See Wonson v. Wonson, 14 Allen, 71, 85. In Trustees of Hopkins Academy v. Dickinson, 9 Cush. 544, 549, the court, in referring to the rule for fixing standards for demarcation of boundaries of real estate which are fluctuating and changeable, said: "The rule is equitable, and as certain as the proverbially variable nature of the subjectmatter will admit; and, in adapting it to the (152 N.E.) steady regard must be had to the great prin- | approved the contract, whether check was acciple of equity, that of equality." cepted in part payment, within G. L. c. 106, § 6, held for jury, in view of length of time it was retained by her. The object of apportioning accretions is that they shall be so apportioned as to do justice to each owner, in the absence of a positive prescribed rule and of direct judicial decision to guide, and their division on a nonnavigable river frontage is so made as to give each relatively the same proportion in his ownership of the new river line that he had in the old. Deerfield v. Arms, 17 Pick. 41, 45, 28 Am. Dec. 276. 3. Frauds, statute of 129(5)—If check to apply on price of standing timber was accepted as absolute payment, it was sufficient part payment to satisfy statute (G. L. c. 106, § 6). Where buyer testified that he made oral purchase of wood and timber on defendant's lot, and gave her check for part of price thereof, if check was received and accepted as absolute payment, it was sufficient part payment to satis If a person owns uplands bounding on the fy G. L. c. 106, § 6. seashore it is a "conclusion of law * that he owned the flats lying in front of such upland to low-water mark, if less than 100 rods, or, if the tide ebbs further, then to the 'extent of 100 rods." Porter v. Sullivan, 7 Gray, 441, 442. In front means "directly to the sea from which the tide flows, by lines as nearly as practicable perpendicular to the line of shore, or the line of ordinary high-water mark, meaning by this, not the line of high water at spring tides, but at ordinary tides. It is obvious from this that, if the shore be convex, the flats attached to it, in proceeding seaward, will expand; if very prominent, the flats will be of a fanlike shape." Porter v. Sullivan, supra. Wherever it is practicable the width of flats owned is equal to the width of the lot at high-water mark. Gray v. Deluce, 5 Cush. 9; Stone v. Boston Steel & Iron Co., 14 Allen, 230. The court, in extending the petitioner's south line as described in its decision, has made an equitable and just allotment of the newly formed land to the petitioner, and in so doing has not encroached upon the rights of the respondents. Order for decree for petitioner affirmed. DUTTON v. BENNETT. (Supreme Judicial Court of Massachusetts. Middlesex. June 10, 1926.) 1. Exceptions, bill of ~~➡58(1)—Excepting party is not required to mail or deliver to adverse party copy of bill of exceptions (G. L. c. 231, 113; Superior Court Rules 1923, Nos. 27, 51). Excepting party is not required, under G. L. c. 231, § 113, nor under Superior Court Rules 1923, Nos. 27 and 51, to mail or deliver to adverse party a copy of the bill of exceptions, and notice by letter, with unsigned copy of bill, was full compliance with statute and rules. 2. Frauds, statute of 159-Whether defendant accepted check in part payment of timber on her lot, so as to satisfy statute, held for Jury (G. L. c. 106, § 6), Where buyer of timber on seller's lot gave alleged seller check to apply on price on August 9, which was returned to buyer with letter on October 10, stating that seller's son had not 4. Frauds, statute of 113(3)-Letter of sel ler, returning buyer's check and stating terms of contract materially different from those of alleged oral contract, held insufficient as "memorandum" (G. L. c. 106, § 6). Where buyer of standing timber gave alleged seller thereof check in part payment, seller's letter returning check, stating terms of contract different from oral contract alleged by buyer, held insufficient as "memorandum" signed by party to be charged, within G. L. c. 106, § 6. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Memorandum.] 5. Frauds, statute of 113(1). The memorandum, to be enforceable under G. L. c. 106, § 6, must express in substance terms of oral contract. 6. Evidence 462-Evidence of defendant's undisclosed purpose in writing letter held inadmissible. Since letter of defendant, declining to ac-` cept plaintiff's check in part payment of standing timber, must be construed in accordance with natural and usual interpretation of words used, evidence of her undisclosed purpose in writing it was properly excluded. CROSBY, J. [1] The only question presented by the plaintiff's exceptions is whether the court erred in denying his motion to dismiss the defendant's exceptions "for the reason that the written notice given to counsel for the plaintiff on the day of the filing of the bill of exceptions in the Superior Court was accompanied only with an unsigned copy of the bill of exceptions and not with For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes a signed copy." G. L. c. 231, § 113, provides This paper was never signed. The plainthat notice of the filing of exceptions must tiff testified that he wrote it in the presence be given to the adverse party. A similar of the defendant and read it to her, and provision is found in rule 51 of the Superior wrote a check for $100 payable to the deCourt (1923). The notice so required to be fendant and laid it on the table; that "she given "shall be in writing." Rule 27 of the was just ready to sign the receipt when she Superior Court (1923). The defendant by said, 'I would like to have my son read this her attorney seasonably delivered in hand over, to see if it is right.' I said that would to the attorney for the plaintiff a letter in be all right, and we left the house." The which it was recited that the defendant's defendant did not deposit or cash the check, attorney had filed for her in the action her but returned it by mail with a letter to the bill of exceptions, and inclosed a copy there- plaintiff on October 10, 1922. She also inof. The letter was duly signed by the de- closed in the letter another check for $400 fendant's attorney, but the copy of the bill which had been sent her by the plaintiff of exceptions inclosed was unsigned. There for the purpose of making the second payis nothing in the statutes or rules which re- ment, due on October 10, 1922, under the alquires an excepting party to mail or de leged agreement. liver to the adverse party a copy of the bill of exceptions. The act of the defendant in inclosing a copy of the exceptions was wholly unnecessary. The delivery of the letter was full compliance with the requirements of the statute and rules. As the plaintiff's motion was rightly denied, his exceptions found, it was received by her and accepted must be overruled. Broomfield v. Sheehan, 190 Mass. 585, 77 N. E. 525,, and Shawmut Commercial Paper Co. v. Brigham, 209 Mass. 199, 95 N. E. 219, cited by the plaintiff, are plainly distinguishable in their facts from those in the present case. [2] The defendant's exceptions relate to the exclusion of evidence, and to the refusal of the court to rule as requested. The action is brought upon an alleged contract, by the terms of which the plaintiff contends that he agreed to buy and the defendant agreed to sell the standing wood and timber on a lot of land owned by the defendant. The defendant pleaded a general denial and the statute of frauds. The plaintiff testified in substance that on August 9, 1922, he saw the defendant and offered to pay her $2,500 for the wood and timber; that he agreed to pay the same as follows: $100 on August 9, 1922, $400 in two months from that date, one half of the balance on April 1, 1923, and the other half before the timber was cut; that he would cut and remove it within two years from August 9, 1922; and that the defendant ac cepted the offer so made. He also testified that when the contract was entered into it was agreed that the defendant should reserve from the sale certain trees she did not wish to have cut and would have marked to be left standing. The plaintiff introduced in evidence a receipt or paper, a copy of which is as follows: “100 x/100. Wayland, Mass., Aug. 9, 1922. [3] Whether the defendant accepted the check for $100 in part payment was a question of fact for the determination of the jury, in view of all the circumstances, including the length of time it was retained by the defendant. If, as the jury could have as an absolute payment, it was a sufficient part payment to satisfy the requirements of the statute of frauds. G. L. c. 106, § 6; Ely v. James, 123 Mass. 36, 44; Illustrated Card & Novelty Co. v. Dolan, 208 Mass. 53, 94 N. E. 299; Feinberg v. Levine, 237 Mass. 185, 187, 129 N. E. 393; Ansin v. Mutual Life Ins. Co. of New York, 241 Mass. 107, 111, 134 N. E. 350; Poresky v. Wood, 248 Mass 464, 466, 143 N. E. 318. It follows that the trial judge could not properly have given the defendant's second, third, fourth, seventh and eighth requests. [4] In the letter dated October 10, 1922, written by the defendant to the plaintiff, in which she returned the two checks, she wrote the following: "My son I have found quite averse to my plan [your plan] which I approved and thinks that the price is too low for such old trees [large trees]." It is the contention of the plaintiff that. if the $100 check was not accepted in part payment of the purchase price, the statement in the letter refers to the receipt in which the terms of the contract were recited, and that the letter signed by the defendant in which she refers to the plan, together with the receipt, constitutes a sufficient memorandum to comply with the statute of frauds. The judge submitted to the jury the question whether the parties entered into a contract, and, if they so found, he left it to them to determine whether the recital in the letter respecting the plan referred to the terms of the sale recited in the receipt and delivered by the plaintiff to the defendant. [5] The memorandum to be enforceable under the statute must express in substance the terms of the oral contract. It is the |